The Hawaiian gazette., 1887-04-05


pledge of the shares as collateral Sc
curity for the purchase money of the
plantation.
The leading case of Casey VS.. Ca
varoc, SO Z. S, ACT. is to the effect that
in order to constitute a valid act of
pledge as against ltigd parties the ne
gotiable instruments which were used
as collateral security, must not only
have been delivered as such but be
continued in the possession of the
Pledge.
am referred by counsel for de-
PENDANTS to Parshall VS.. Eggert, "a n.
Y. is, where it was held that one who
has a contract for pledge Intellectual
for want of delivery of the goods, may
obtain subsequent delivery and thus
validate the hodge, even as against
an intermediate creditor.
In the apparent conflict of author
ity between the n. Y. Court of APP
peals md the Supreme Court of the
Z. S, prefer to adopt the views of
the latter. In the case before me
there are no rights of third parties
intervening to invaidate the pledge
In the case before me the possession
of the shares has remained continu-
ally in Patty after he paid the note on
the 18th January, 1882. But the
shares We're transferred to his posses
sion, when they were dcsgaIg delivered,
not in pursuance of the letter of the
Sth April, 1880, lin order to be in
Paty's hands as additional security
for the purchase money of the plant
ation.l but by the authority of the
verbal request of Wilfong to Patty on
the 18th January, 1882, to take up his
note to c. Brewer & Co., to receive
the shares as collateral to this obliga-
ton.
But even if it were otherwise, and
if 1 should find that the shares rsre so
pledged, is there remaining any in
debtedness of Wilfong to Parker and
Patty on account of the plantation
purchase, which Wilfong is bound to
discharge before he can be entitled to
the possession of the shares?
The general rule is stated in Loud
VS.. Lane, Pick. SIS, to be thus.
When the legal title by the mortgage
becomes united with the equitable
title so that the owner has the whole
title, the mortgage is merged and ex-
tinguished by the unity of possess
ion"
The question whether the mort
gage is extinguished or not, rests
upon the intention, actual or pre-
sumed of the person in whom the in
terests are united"
l Jones on Mortgages, Sec. S4S.
But if the owner has an interest
IN keeping these titles distinct, or if
there be an intervening right between
the mortgage and the equity, there is
no merger" I'd. In fact the doc
trine of merger springs from the fact
that when the entire equitable and
legal estate are united IN the same
person there can be no occasion to
keep them distinct, for ordinarily it
could be of no use to the owner to
keep up q charge upon an estate of
which he was seized in fee simple:
but If there is an outstanding, inter
vening title. the foundation for the
merger does not exist, and as a mat
ter of law it is so declared"
Stantons vs. Thompson, 40 n. II.
352.
In Findlay vs.. Hosmer, 2Conn. 353,
the Court say, And although it is
true, as 3 general proposition, that
where the mortgage purchase of the
the equity Of redemption,
It viii operate as arelease of his debt;
get this IS because a presumption
arises from the nature OF the transact
.on. that such was the intention of
.he parties"
From the evidence presented, 1 |
lhink Parker and Patty intended the |
mortgage debt to be extinguished by |
he deed Of Wilfong to them of the |
plantation property, that which was
nortgaged and also that subsequently,
acquired. There was a merger. No |
Intervening title or right exists in
his case TO make it their interest to
leep the title distinct.
Having arrived at this conclusion, |
follows that Parker and Patty are
lot authorized TO retain the shares as
ecurity for the plantation debt, for
he debt is paid. Even if the shares
we're validity pledged to Parker and
Patty TO secure the plantation in
and, assuming that the
mortgage IS not extinguished By the
Iced OF March 31st. 1884. the sale of
he shares by Patty Is irregular. for
Yillfong was, by all the authorities.
\ the absence Of a contract to the
onrary, entitled TO a reasonable
lotce Of the time and place Of sale,
o enable him to be present and guard
Us interests. Colbrookc. Sec. 81.
The sale should be public and the
ale TO himself, privately made, is
reach OF the good faith required be
ween pledgor and Pledge.
But the shares are Talidly pledged
0 Patty as security for the 5000 |!
.ote, and Wilfong Is entitled to re-